Will Drafting for Maximum Impact: Mitigating Hazards and Future Challenges - 5 part on-demand webinar series

Program 1: Testamentary Trusts: Key Risks and Drafting Tips for Variation Clauses

The very nature of testamentary trusts as a long-term repository of family wealth gives rise to complex challenges, particularly in the face of changing circumstances and relationships. This session will focus on the importance of precise drafting of variation clauses and how to avoid the risks that have led to complications and failures in trust deed changes, including:

• Forward planning in trust deed drafting
• Not set in stone: why variation clauses are integral to the trust deed
• Key considerations of content and process in variation clauses
• Consent, death and other stumbling blocks to deed variation
• The consequences of getting it wrong and mechanisms for minimisation of failure
• Drafting tips and examples
• Recent cases

Program 2: The Gifts that Don’t Keep on Giving: Drafting to Minimise Gift Failures in Wills

There can be multiple reasons why specific gifts left in a will can fail, but much of it is avoidable with careful planning and appropriate guidance from practitioners to their clients. This session will examine some common but easily avoidable problems, including:

• Strategies for obtaining and recording comprehensive instructions
• Identify and specify – ensuring precision in identification and details of assets, beneficiaries and specific gifts
• Drafting for change and the importance of regular will reviews
• Common problems and how to avoid them in gifts of shares, real estate and to charities
• Why residue and remainder clauses matter and what should be in them
• Lessons from the courts.

Program 3: Playing Fair: Effective Equalisation Provisions

The intention to ensure beneficiaries share equally in the estate is very common, but this needs to be supported by clear and precise drafting. This session will take a deep-dive into drafting equalisation clauses and other mechanisms to achieve the desired result of fairness in outcome, including:

• What does equalisation in the estate really mean?
• Strategies for achieving equalisation through structuring and drafting of testamentary documents
• Forethought and forecasting in the drafting process
• Factoring in tax, duty and other impacts
• Managing risks from asset value changes and other developments between original drafting and death
• Relevant cases and examples

Program 4: Walking the Tightrope in Mutual Will Drafting

In theory, mutual wills provide blended families with some certainty following the death of the respective will-makers, but in practice drafting mutual wills requires considerable planning and drafting precision. This session provides a guide to practitioners on practicalities and challenges in drafting mutual wills, including:

• How to structure mutual wills and key clauses
• Building in restrictions or options for revocation and termination pre-death
• Clarifying assets and property the subject of the testamentary intentions
• Limitations and restrictions on the survivor’s power and ability to dispose of, reduce or use the assets
• Techniques for factoring in circumstances including:

• age differences of will-makers
• nature of the family – step-children and/or biological children together
• contributions of the parties before and during the marriage
• length of the marriage
• ongoing needs and circumstances of the surviving spouse.

Program 5: Ducks in a Row: Aligning Binding Financial Agreements, Binding Death Benefit Nominations and Wills

The diversification of assets, the growth of superannuation value and marriage breakdowns and re-partnering have all contributed to complexity in succession planning. With a range of documents and directions potentially applying upon death, practitioners need to plan and draft accordingly to avoid inconsistency and ensure their clients’ intentions are met. This session will provide a guide to drafting complementary arrangements to apply upon death, including:

• Planning considerations for clients with complex needs and assets – tips for taking a wholistic approach
• To what extent do the terms of a BFA apply following death of one of the parties?
• Should a will refer to a BFA or incorporate relevant provisions?
• Structuring binding death nominations in superannuation trust deeds to align with testamentary and BFA intentions
• Will a statement of wishes accompanying a will minimise the risk of a dispute?
• Key issues in updating and periodic review of testamentary intentions and relevant documents
• Drafting guidance and strategies for consistency and completeness